M KORGA SHETTY Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioners before this Court were accused 1 and 2 in the Court of the Additional Munsiff-cum-First Class Magistrate, Udipi, in C. C. No. 624 of 1970. They, along with ac-cused 3 to 5, were prosecuted for com- mitting an offence Under Section 160. IPC The learned Magistrate found all the five accused guilty of the offence Under Section 160, IPC and convicted and sentenced each of the accused to a fine of Rs. 5/-, in default to undergo S. I. for 7 days. In this revision, the petitioners (accused 1 and 2) challenge the legality and correctness of the said conviction and sentence passed on them.

(2.) Sri P. Viswanatha Shetty, learned Counsel appearing on behalf of the petitioners, has contended that the prosecution has failed to establish the two essential ingredients of the offence Under Section 160, IPC He argues that there is no evidence on record to show that there was a fight between the petitioners and others and that the fight took place in a public place. Mere scolding or quarrelling in a public place would not come within the definition of 'affray' as laid down in Section 159, IPC It is contended that an adverse inference should be drawn against the prosecution for not examining material witnesses who were admittedly present at the time of the occurrence, in the shop opposite to which the occurrence took place. It is also argued that the learned Magistrate was wrong in making observations about the relationship between the parties without there being any evidence on record. Strong reliance is placed on a decision of this Court in Balakrishna Shetty v. State of Mysore (1966) 1 Mys LJ 528, wherein it has been laid down that fighting connotes contest or struggle between two or more persons and if a person is attacked in a public place and if he tries to escape it cannot be said that there is any fight between the two.

(3.) The only witness who speaks to the occurrence is P.W. 2, Police Constable Sheena. His evidence is that when he went to the scene of occurrence, he found the accused quarrelling with one another on the public street in front of the shop of Mahabala. He has further stated that the accused were scolding one another in filthy language and they caused annoyance to the public. In cross-examination he has repeatedly used the words that the accused were "quarrelling." The learned Magistrate committed a mistake in thinking that P. W-2 has deposed that he saw the accused fighting with one another in the public street. P.W. 2 has nowhere used the word "fighting" in his deposition.